People v. Fuller, Docket No. 50503
| Decision Date | 06 May 1981 |
| Docket Number | Docket No. 50503 |
| Citation | 307 N.W.2d 467,106 Mich.App. 263 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Kenneth Raymond FULLER, Defendant-Appellant. 106 Mich.App. 263, 307 N.W.2d 467 |
| Court | Court of Appeal of Michigan — District of US |
[106 MICHAPP 264] Craig D. Alston, Bay City, for defendant-appellant.
Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., George B. Mullison, Pros. Atty., Thomas J. Rasdale, Asst. Pros. Atty., for plaintiff-appellee.
Before BASHARA, P. J., and T. M. BURNS and BEASLEY, JJ.
Defendant was convicted by a jury for conspiracy to deliver a controlled substance and delivery of a controlled substance, contrary to M.C.L. § 750.157a; M.S.A. § 28.354(1) and M.C.L. § 333.7401; M.S.A. § 14.15(7401).
Defendant was the owner and driver of a van, [106 MICHAPP 265] from which, undercover police officers testified, an illegal drug sale was transacted. The van was seized, and a warrant to search the van was issued on the basis of the affidavit of an officer, who was neither the arresting officer nor one of those working undercover. The search produced incriminating evidence.
Defendant contends that the search of his van was illegal because the supporting affidavit for the warrant was insufficient to establish probable cause. The affidavit was not based totally upon the affiant's own personal observations but upon information relayed to him by fellow police officers. Defendant argues that probable cause could not be based upon this affidavit since it failed to meet the two-pronged test set forth in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). Those cases essentially hold that when an affidavit contains hearsay statements of a confidential informant it must show that the tip was accompanied by some of the underlying circumstances upon which the informant based his conclusions. Second, there must be some basis for concluding either that the informant was credible or that his information in the particular instance was reliable.
We do not believe the Aguilar-Spinelli test is applicable to the situation presented here. A number of decisions have held the test inapplicable to information supplied by ordinary citizens. People v. Tooks, 403 Mich. 568, 577-578, 271 N.W.2d 503 (1978); People v. Harris, 95 Mich.App. 507, 511, 291 N.W.2d 97 (1980); People v. O'Brien, 89 Mich.App. 704, 714, 282 N.W.2d 190 (1979); People v. Rodriguez, 83 Mich.App. 606, 609, 269 N.W.2d 199 (1978); People v. Emmert, 76 Mich.App. 26, 30-31, 255 [106 MICHAPP 266] N.W.2d 757 (1977). These decisions all concur that it would be illogical to place a dutiful citizen in the same category as the professional stool pigeon who is often described as a confidential informant and is often himself criminally disposed. We find no reason to distinguish police officers and ordinary citizens for the purpose of meeting the Aguilar-Spinelli test.
When one police officer receives information from a fellow officer, the law allows him to assume that his source is credible. See United States v. Cox, 464 F.2d 937 (CA 6, 1972). Where this information is then presented to a magistrate in an application for a search warrant, the magistrate too may consider the source to be credible.
Of course, the information set forth in an affidavit still must be sufficient to convince the magistrate that there is probable cause to believe that the items to be sought will be found in the place to be searched. The affidavit here stated that the affiant gained his information from two police officers who took part in a planned surveillance and whose function it was to make drug purchases. The magistrate could assume that the two officers had experience in this area and had the ability to sufficiently identify illicit drugs. The affiant further stated that it had been his experience that people who sold drugs out of vehicles often carried other drugs in their vehicles. We conclude that the magistrate had probable cause to believe that a search of defendant's van would produce evidence of marijuana or PCP.
Finally, the standard of review for the issuance of search warrants is succinctly stated in People v. Iaconis, 29 Mich.App. 443, 462, 185 N.W.2d 609 (1971): "This Court may not substitute its judgment for that of the magistrate...
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